UPDATED: Ellora’s Cave Sues Dear Author: Hello Streisand Effect

So yesterday was a quiet news day, huh?

Earlier this month, Jane from Dear Author wrote an analysis of Ellora's Cave ongoing financial and public relations problems, highlighting the authors who have reported nonpayment, and the frustrations many have reported in dealing with EC in general.

I read her article and thought, at the time and as usual, Jane is really skilled at placing a specific issue in a larger historical context. In this case, she looked at their reported earnings and the reported problems from author commentary against the timeline of the digital book proliferation and asked, logically I thought, WTF?

It's a valid question, really. 

Here's some more: 

Ellora's Cave has filed a defamation suit against Jane, demanding that she take down the blog post and claiming damages in excess of $25,000.00. Plus, they've demanded in the suit filing the names of those who have commented anonymously on that post. 

Oh, boy. 

So what happens now?

A lot of people say WTF, for one thing. I know I am.

Nate Hoffelder wrote at the Digital Reader about the Streisand Effect, which is basically when a lawsuit highlights content or information that the lawsuit seeks to suppress.

The Streisand Effect was named after Barbra Streisand (who is amazing in many respects) filed suit against a photographer for publishing coastline photos of California's beach erosion, demanding that one be taken down because it showed her property. So of course once the suit was picked up by the media, everyone looked at that picture – which now accompanies the Wikipedia article explaining what the Streisand Effect is. A perfect illustration: hey, it's Barbra's house!

This suit, much like Streisand's, creates the same effect: instead of taking down the content, The Curious Case of Ellora's Cave is now probably among the most popular pages in DA's database.

So here's some Barbra Gifs to help me explain the rest of the reasons this is a big fucking deal. 

So with the lawsuit, what happens now?

Well, the way defamation works, in the most simplest of terms, if the person being sued (in this case, Jane) can prove that what she said was true, then she wins. Jane's post links to several examples as backup for the points that she makes regarding nonpayment and the liquidation of assets.

Moreover, the process of discovery – which is when the attorneys on each side request access information they've determined is germane to the case – will examine Ellora's Cave's accounting, and whether or not authors have in fact been paid, since that's part of what Jane's column addressed, and part of what Ellora's Cave has objected to in their lawsuit filing.

But in the larger context, this means a publisher is suing a blogger for reporting about business matters. Effectively, EC is suing Jane for practicing journalism and also demanding the identity of her anonymous commenters.

And that right there is a big OSHIT. Because I'm also a blogger. 

And so are many of you who read this page. (Hi there.) 

What does this mean for bloggers?

Many – if not most – bloggers are hobbyists, who write about books because that's what they like to do, instead or maybe in addition to other awesome activities. Usually in addition to – bloggers are busy.

Most bloggers are not corporations – such as an LLC, or limited liability corporation company (sorry!). This site is owned by Smart Bitches Trashy Books, LLC, for example. Dear Author is owned by Dear Author Media Network, LLC. The LLC provides a sort of separation between business and personal for the person operating the site, and while state laws vary on how to establish an LLC, in most states it's a pretty straightforward process. At the book blogger convention at RT, I spoke briefly about advertising, revenue, and income from a blog, and the first step I advise any blogger is to establish an LLC for the blog.

Why? Because of situations like this.

In conversations with bloggers privately and in the Book Blogger Convention Jane and I run, many, many book bloggers have mentioned being afraid to write negative content about a book, or a publisher because of their worry about being sued for content. Because for one thing, lawsuits are messy and often painfully expensive.

And it's not just the book bloggers who have been afraid to speak up. Authors are also hesitant to do so as well. You might think this is just drama and self-aggrandizement, or people fanning themselves for attention.

I assure you, it's not. This case affects authors as well. I'm not the only one who thinks so: 

What is happening to @dearauthor is EXACTLY why authors fear speaking out against certain publishers. Threats of legal action happen a LOT.

— Larissa Ione (@LarissaIone) September 27, 2014

I hope no one is still mocking the idea that EC authors were afraid to speak out.

— Bree Bridges (@mostlybree) September 27, 2014

The information Jane reported specifically linked to individual authors who stated that they weren't being paid, and in the comments, other authors agreed, several anonymously, and said they were in a position where they didn't feel they could speak out.

Now Ellora's Cave is demanding their identities. 

That's dangerous for everyone. It's dangerous for anyone who writes about books, who joins us to talk about books, and for anyone who writes the books that we're writing about.

Nate and Jane both have also mentioned SLAPP, short for “strategic lawsuit against public participation,” which refers to lawsuits filed frivolously to silence critics. As Jane clarified today, Ohio, the state in which EC has filed suit, does not have anti-SLAPP statues in place, which means they can't be used to dismiss the suit. 

Wait, what about those who are celebrating Jane got sued?

Yeah. I definitely want to address those who are celebrating that Jane got sued. 

There are plenty of people in publishing who dislike both Jane and me. We've talked about that at length. 

But I've seen a few authors celebrating the lawsuit, and… wow. This is so much bigger than whom you like vs whom you don't.

Jane was writing about authors not being paid. About a publisher not paying authors, and authors speaking out about it. We've reported on similar situations in the past, both of us. Dorchester in particular – we both declined to review Dorchester books because Dorchester authors began posting wherever they could about nonpayment of royalties, and that their books still being offered for sale despite reversion of rights. 

So this is, specifically, a big deal, and a giant WTF isn't nearly enough to cover my reaction. I'm completely baffled by the celebration over this lawsuit.

ETA: The celebrations of a few are minor compared to the overwhelming support Jane has experienced. As she said to me earlier, “most everyone has been amazing. I'm blown away by the support and I love our romance community.”

What about commenters?

Jane has stated that she will protect the anonymity of anyone who wishes to comment or contact her with information. I extend the same offer here – though please note, if you comment using an email address that you've used elsewhere, your Gravatar may show up. Better to enter a bogus address in the email field, like anon@anon.com or similar.

And how else can people help?

For right now, listen and learn. If the suit moves into litigation, Jane will set up a legal fund, and we'll post about that, too.

But most of all: talk. It's scary to speak up, especially with actions like this against a blogger. But the best part about the blogging community on any subject, not just books, is that hearing from everyone means we all learn more. It's scarier to speak up now – I totally get that. But it's important, more than ever. 

What, there's more?

Yup! Updated information, new links, Twitter discussions – links ahoy, so grab a drink or a smoke or whatever can calm you down a moment. There's more.

You might have seen the Google cache of this page. Sorry about that – Reddit linked to us, which is awesome (hi Redditors!) but sent the server into a tailspin. But we're back, and my apologies. 

First, Jane has retained the services of attorney Marc Randazza, described at Popehat as a “First Amendment Badass.” I'm not sure there's a better description for an attorney, to be honest. 

Second, I didn't want you to miss this post from Sunita, who writes at DearAuthor, about the chilling effect of Ellora's Cave's lawsuit, and specifically why they chose to highlight Jane's personal details: 

EC picked the wrong person to sue, no question. But by filing at all, they’re also reminding their authors and editors that they have no compunction about publicizing the personal information of anyone they see as an adversary. It’s not necessary to sue an individual person in this case; suing Dear Author LLC would have taken care of their needs.* But it wouldn’t have sent the same “we know who you are” message. EC has already stipulated in internal communications that authors “include both legal name and pen name when communicating with Ellora’s Cave.” This just ups the ante….

As Lawless points out in the comments… suing Jane was potentially more lucrative than suing Dear Author LLC alone. But that still doesn’t explain why Jane wasn’t sued as “Jane Litte.” That choice not only sends the message that EC will sue bloggers for reporting about them, but that they will (gratuitously and spitefully) take the opportunity to reveal private information as part of the suit.

And then there's Courtney Milan's post today which further discusses the chilling effect, and Jaid Black's response on Twitter about the suit (since deleted) and Milan's perspective on Black and Ellora's Cave as Limited Purpose Public Figures:

…the standard for defamation actions for limited purpose public figures is substantially different than for private citizens. The standard is that the speaker must be acting with actual malice: that is, they must know (or be reckless about knowing) that the statements they are speaking are false. What that means is that if I say something and I have a good-faith belief that what I am saying is true–even if it later turns out to be false–I am not going to be held liable for defamation.

I point this out because I am extremely, extremely pissed off about this lawsuit. I believe that this lawsuit was filed for the purpose of chilling speech–and for the purpose of chilling true speech about a matter of imminent public concern. And I think that despite the outpourings of support, it’s working. This lawsuit is about teaching authors to sit down and shut up, even if their livelihood is at stake….

So I’m going to be tweeting harsh things about Ellora’s Cave that I believe to be true, and that I am confident will not be held defamatory under the limited public figure test because they are not made with actual malice. If they sue me, they sue me, and I’ll consider it money well spent.

I can’t give you legal advice about what to tweet. I can’t tell you that tweeting is safe and that it won’t harm you. But I’m going to be tweeting these things under the hashtag #notchilled–because I refuse to have legitimate speech about a matter of public concern chilled by a self-important bag of farts who happens to have access to a lawyer.

Hashtag? HELL YES HASHTAG: have a look at #notchilled so far, as former EC authors, published authors, writers, bloggers and readers participate.

Also: if you're an Ellora's Cave author who would like to let folks know about your other titles that are not published by EC, there's a form for you to fill out, which Jane developed.

Ellora's Cave has managed to anger several vocal parts of the romance community online, and I know word is spreading on email loops as well about this lawsuit. As I mentioned above, this may end up having the exact opposite effect that they wanted in terms of illuminating the complaints against them, but as Sunita and Courtney Milan have both mentioned, it's also spreading fear among those who write romance, and those who write about it.  I know many people have written to Jane offering support, and I have seen so many people on social media and on their own sites writing about how angry they are, how unacceptable this lawsuit is, and how frustrating it is to witness it (let alone be the target of it). Sunita and Courtney Milan are right: it is scary to speak out now, and it is scary to know that they'd aim at a blogger (who is herself an attorney) who was practicing journalism. It's a relief to know that others are just as angry and appalled and are calling this lawsuit out as the bullshit that it is. 

Updated 30 September 2014 1:30 pm ET:

Rather than start a new entry, I'm going to update this one until I can't update it any more because I've run out of room on the internet. 

: 

Today there was a temporary injunction hearing.  During the hearing the judge did not grant the injunction, but did request that we come back for a more thorough hearing, where we would be able to provide evidence in our defense.

Truth is an absolute defense to defamation.

Therefore, If you are willing, I need help with the following:

Individual authors, editors, cover artists willing to testify, either in person, via telephone or in an affidavit to payments made/not made.

To clarify, anything that shows people not being paid or complaining about it.

It would be best if you could testify in person, but a sworn written statement will be adequate.

Additionally, if you have any Screenshots of any public statements regarding Ellora’s Cave, those would be helpful too.

You can reach me at jane@dearauthor.com.

You can spread the word via whatever social media or email loops you have. Here's a handy link to that entry on DA: .

Updated 3 October 2014: 

Jane has asked me to administer a legal fund to help her with the costs of her defense: The Jane Litte Dear Author Legal Defense Fund is at GoFundMe, and details about contributions and the how and why of a legal fund are explained there. 

Thank you for any help you can give, including spreading the word about how we can help Jane.